Diritto amministrativo

Making Procedures

PRELIMINARY REMARKS: The ruling deals with the law of consultation in the UK. There is no general duty to consult for public administrations imposed by statutes. Code of practice on written consultation There is only a "political" issued by Cabinet office, transformed in 2013 in a body of principles. However, a duty to consult arises where there is an established administrative practice or a promise of consultation (Where a public body on its own motion chooses to conduct a consultation). Moreover, duty to consult in rule making procedures can arise by local imposes and sectorial legislation. In any of these cases, the common law minimum legal requirements including that sufficient information be given to consulters, the consultation take place when proposals are at a formative stage, consulters are afforded sufficient time to respond, and the authority conscientiously consider responses. The law of consultation, as developed by lower courts, is a branch of common law.

Wilson: "common law duty may arise outside of cases of individualized impact because its concerns transcend individual rights protection, encompassing public goals of meaningful citizen participation in public life and good decision-making. A common law duty of fairness arose so that the Council was bound by the common law's minimum legal requirements for conduct of a fair consultation." 1978 Vermont Yankee Nuclear Power v. Natural Resources Defense Council

US PRELIMINARY REMARKS

• "On the record" or "formal" rulemaking, involving modified trial-type procedures. Explicitly provided for by statute.
• "Notice and comment" rulemaking, in which the agency is merely required to give notice of proposed rulemaking in the Federal Register, afford interested persons an opportunity to submit comments, and provide a written explanation of the rules ultimately adopted. As traditionally understood, notice and comment procedures are designed to approximate a

legislativemodel of decision-making, which enables interested parties to submit viewsleaves administrators free to consult whatever factualon proposed rules butmaterials they deem relevant without notifying the parties or making suchmaterials available to a reviewing court. APA notice and comment proceduresaccordingly do not require the development of an evidentiary record.agencies were traditionally required to give only a cursoryMoreover,explanation of the grounds for their decisions .- Informal rulemaking procedures can take place when an agency for goodcause finds that notice-and-comment is not applicable.Critical perspective: Two different paths.First, the crush of increased responsibilities and the burdens of trial-type hearingshave led the NRC and other federal agencies to turn from case-by-case adjudicationto general rulemaking proceedings in order to develop administrative policy.Second, widespread recognition that agencies exercise broad law making discretion,together with

mounting distrust of the wisdom and fairness of agency decisionmaking, have led courts to exercise more exacting scrutiny of the factual and analytical bases of such decisions. It has proved difficult to accommodate these two developments within the scheme of APA.

In freezing most administrative procedures in the obsolescent model established by the APA in I946, it ignores the recent shift by agencies from adjudication to rulemaking in deciding policy, and the corresponding need for developing new procedures that will generate an adequate evidentiary record enabling courts to review the substantive validity of agency decisions.

2) In recent years, many commentators have argued that lower courts, and in particular the DC Circuit, have repeatedly defied Vermont Yankee, imposing procedural requirements that go well beyond the mandates of the APA. They have called for a kind of Vermont Yankee II, underlining the conclusion that judge-made common law is not a legitimate part of

federal administrative law.

2015 Perez v. Mortgage Bankers Association US

In 1999 and 2001, the Department of Labor's Wage and Hour Division issued letters opining that mortgage-loan officers do not qualify for the administrative exemption to overtime pay. In 2004, the Department issued new regulations regarding the exemption. Respondent Mortgage Bankers Association (MBA) requested a new interpretation of the revised regulations as they applied to mortgage-loan officers, and in 2006, the Wage and Hour Division issued an opinion letter finding that mortgage-loan officers fell within the administrative exemption under the 2004 regulations. In 2010, the Department again altered its interpretation of the administrative exemption. Without notice or an opportunity for comment. The Paralyzed Veterans doctrine holds that an agency must use the APA's notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from a previously adopted interpretation.

The Supreme Paralyzed Veterans Court held that the D.C. Circuit's doctrine is contrary to a clear reading of the Administrative Procedure Act and "improperly imposes on agencies an obligation beyond the Act's maximum procedural requirements".

Right to be heard and participatory guarantees in the EU perspective: 2013 Jiří Sabou v. Finanční Prahu

Relevance of due process as a pillar of the duty to good administration (art. 41 Charter Fundamental Rights). ECJ has regarded the right to be heard as a general principle applicable to the addressees of decisions which "significantly affect their interests".

The case: The case concerns Mr Sabou, a professional footballer, and Finanční Prahu (Tax Directorate for the City of Prague), with regard to the amount of his taxable income for 2004. In particular, Mr Sabou claimed that the Czech tax authorities had obtained information about him illegally. First, they had not informed him of their request for

1. Assistance to other authorities, so that he had not been able to take part in formulating the questions addressed to those authorities.
2. Secondly, he had not been invited to take part in the examination of witnesses in other MS, in contrast to the rights he enjoys under Czech law in similar domestic proceedings.
3. The "observance of the rights of the defense is a general principle of European Union law which applies where the authorities are minded to adopt a measure which will adversely affect an individual".
4. "In accordance with that principle, the addressees of decisions which significantly affect their interests must therefore be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision".

Transparency part I

Meaning(s) and function(s) of transparency

1. Transparency as a precondition of participatory guarantees
2. Transparency and accountability of public agencies

Paul Craig: Access to information concerning governmental decision-making is central to the idea of a democratic society where the government should be held accountable for its action. Individual citizens should be able to know the information held about them in order to check its correctness and the uses that the administration makes of it. Public disclosure improves decision-making. Access to information and openness are vital because an informed public is able to participate in public life and hold the government to account.

Different meanings and dimensions:

A. Accessibility: right to know, after a specific request (reactive disclosure)

B. Publication: agencies' duty to discover and publish documents and information (proactive disclosure)

The digital revolution is making the transition from reactive disclosure to proactive disclosure easier

Transparency in the USA

The USA is the country with an ancient tradition on transparency:

- The duty of motivation (or duty to

(c) Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees, the parties are entitled to a reasonable opportunity to submit for the consideration of the employees participating in the decisions:

1. proposed findings and conclusions; or
2. exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions; and
3. Supporting reasons for the exceptions or proposed findings or conclusions.

The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of:

1. findings and conclusions, and the reasons or basis therefore, on all the material issues of fact, law, or discretion presented on the record; and
2. the

   Appropriate rule, order, sanction, relief, or denial thereof.

   U.S. FOIA: entitled persons and coverage

   “Any person” is entitled to request a document’s disclosure; an applicant doesn’t have to demonstrate a specific interest in a matter to view relevant documents, an idle curiosity is sufficient. The FOIA extends to virtually every executive department, bureau, agency or office. State government and local and city government are not included in this legislation, but many have their own FOI laws. The Act covers the information and not only the document. The applicant can require to the agency an elaboration concerning the document requested (this is not possible in other countries, for example in France).

   The Electronic FOIA of 1996 made absolutely clear that the FOIA covers electronic records. The Act imposes three distinct